IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 48525-7-II Respondent, v. SHELLY MARGARET ARNDT, UNPUBLISHED OPINION Appellant. LEE, J. — Shelly Arndt appeals her convictions for aggravated first degree murder, with aggravating circumstances and special allegations of first degree arson, domestic violence, and a particularly vulnerable victim; first degree felony murder predicated on first degree arson, with aggravating circumstances and special allegations of domestic violence and a particularly vulnerable victim; first degree arson, with aggravating circumstances and special allegations of domestic violence and an impact on persons other than the victim; and six counts of second degree assault. We hold that the trial court did not err when it excluded (1) Dale Mann’s testimony about the melted bucket, the plastic container, demonstrative evidence, the polystyrene test results, flashover, and smoke visibility; and (2) Craig Hanson’s testimony. However, we hold that the trial court erred when it excluded Mann’s testimony about his review of police reports, but the error was harmless. We further hold that the trial court did not violate Arndt’s right to be free from double jeopardy by entering convictions for aggravated first degree murder with a first degree arson aggravating circumstance and first degree arson. But the trial court violated Arndt’s right to Filed Washington State Court of Appeals Division Two December 12, 2017
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48525-7-II
Respondent,
v.
SHELLY MARGARET ARNDT, UNPUBLISHED OPINION
Appellant.
LEE, J. — Shelly Arndt appeals her convictions for aggravated first degree murder, with
aggravating circumstances and special allegations of first degree arson, domestic violence, and a
particularly vulnerable victim; first degree felony murder predicated on first degree arson, with
aggravating circumstances and special allegations of domestic violence and a particularly
vulnerable victim; first degree arson, with aggravating circumstances and special allegations of
domestic violence and an impact on persons other than the victim; and six counts of second degree
assault.
We hold that the trial court did not err when it excluded (1) Dale Mann’s testimony about
the melted bucket, the plastic container, demonstrative evidence, the polystyrene test results,
flashover, and smoke visibility; and (2) Craig Hanson’s testimony. However, we hold that the trial
court erred when it excluded Mann’s testimony about his review of police reports, but the error
was harmless. We further hold that the trial court did not violate Arndt’s right to be free from
double jeopardy by entering convictions for aggravated first degree murder with a first degree
arson aggravating circumstance and first degree arson. But the trial court violated Arndt’s right to
Filed
Washington State
Court of Appeals
Division Two
December 12, 2017
No. 48525-7-II
2
be free from double jeopardy by entering convictions for aggravated first degree murder with a
first degree arson aggravating circumstance and first degree felony murder because the legislature
intended for the conduct underlying Arndt’s murder convictions to be punished as a single offense.
Accordingly, we remand this case back to the trial court to vacate Arndt’s first degree felony
murder conviction, but we affirm the remaining convictions.
FACTS
A. THE INCIDENT
Sean and Kelly O’Neil1 lived in a two-story split-level home with three of their children.
The home was heated by a wood stove, primarily fueled by burning presto logs and wood kindling,
located in the living room upstairs. There also was a gas insert and baseboard heaters to heat the
downstairs, but both were turned off. There was a vent between the upstairs and downstairs
directly underneath the hearth of the wood stove.
Downstairs, there were some cardboard boxes, a trunk, a foosball table, a weight rack and
bench, a bookcase with books, a coffee can, the gas insert and hearth, a television, the baseboard
heaters, a floor fan, and a leather couch. There also were three beanbag chairs that were by the
foosball table.
On February 23, 2014, Arndt and her boyfriend, Darcy Veeder Jr., spent the night at the
O’Neils’ house. The two were drinking with Kelly and a friend, Donny Thomas. Arndt, Veeder,
and Thomas were the last to go to bed. A fire was lit in the wood stove, but it was going out, and
Thomas and Veeder could not get it going again. Later that night, the house caught on fire. Arndt
1 Because the O’Neils share the same last name, we use their first names for clarity with no
disrespect intended.
No. 48525-7-II
3
woke Kelly and Thomas, who got out with the kids, but Veeder did not make it out and died in the
fire.
B. THE CHARGES
After an investigation, the State charged Arndt by amended information with aggravated
first degree murder, with aggravating circumstances and special allegations of first degree arson,
domestic violence, and a particularly vulnerable victim; first degree felony murder predicated on
first degree arson, with aggravating circumstances and special allegations of domestic violence
and a particularly vulnerable victim; first degree arson, with aggravating circumstances and special
allegations of domestic violence and an impact on persons other than the victim; and six counts of
second degree assault.
C. PRETRIAL
The State filed a motion to exclude the testimony of Craig Hanson. The parties agreed that
Hanson had worked for the Kitsap County Fire Marshal’s Office sometime in 2013 under David
Lynam, the fire marshal, but that Hanson was not working there at the time of the fire. Arndt
represented that Hanson would testify about what Lynam instructed him to document during the
course of a fire investigation and how to gather evidence. Arndt agreed that Hanson did not have
facts specific to this case. The State argued that Hanson’s testimony should be excluded based on
relevancy, hearsay, foundation, and prejudice.
The trial court ruled that Hanson’s testimony was not relevant because he was not a part of
the investigation in this case nor was he a part of the fire marshal’s office at the time of the fire.
The trial court also found that Hanson had not been identified as an expert who could testify about
No. 48525-7-II
4
the proper procedures the fire marshal’s office is required to follow in an origin and cause
investigation.
D. TRIAL
1. Kelly O’Neil and Donny Thomas
Kelly O’Neil testified that in the middle of the night, Arndt woke her up and told her that
the house was full of smoke. Kelly realized that the house was on fire. It smelled like burning
rubber tires. Once Kelly and Arndt got out of the house, they realized that others were still in the
house. They both went back into the house. While going downstairs, Kelly saw an orange glow
towards the downstairs family room side.
Donny Thomas testified that Arndt woke him up and told him that there was possibly a
fire. Thomas looked to the fireplace, saw nothing, and then went to look downstairs and saw fire
coming from the downstairs living room.
2. Edward Iskra
Edward Iskra, a fire investigator hired by an insurance company to investigate the fire,
conducted an origin and cause investigation of the fire. His purpose in this case was to conduct a
fire investigation, not to produce a report. He was able to enter the house after Lynam, the fire
marshal, released the scene.
Iskra testified that National Fire Protection Association (NFPA) 921 is a guide for fire
investigations and it is appropriate to follow the NFPA 921 in origin and cause investigations.2
2 The NFPA requires that the scientific method be followed throughout a fire investigation. Iskra
could not think of any other text that was more authoritative than NFPA 921. And the International
Association of Arson Investigators states that NFPA 921 is widely recognized as an authoritative
guide for the fire investigation profession.
No. 48525-7-II
5
Within that guide is the scientific method, which is a procedure to standardize fire investigations
and determine where a fire started.3 Fire investigators who arrive on the scene later frequently rely
on the information gathered by other investigators who arrived first.
After investigating the upstairs area and analyzing the burn patterns, Iskra determined that
the fire originated from the recreation room downstairs.4 Once downstairs, Iskra investigated and
ruled out the light switch, outlets, pedestal fan, ceiling fan, television, baseboard heaters, and gas
stove as possible origin points. He ultimately concluded that the fire was intentionally set, the
exact origin of the fire was on the north side of the stairway in the northeast portion of the couch
on the floor, and the ignition source was more likely than not an open flame.
Iskra also concluded that it was possible the room “flashed over,”5 but that the room did
not flash over because of the open stairwell. 9 VRP at 1652. Whether flashover occurred or not
did not affect his conclusions because flashover would just tell him where his general area of origin
and cause was, and he would still be able to analyze fire patterns to find the point of origin.
3 The scientific method involves (1) recognizing the need or assignment, (2) defining the problem,
(3) collecting data, (4) analyzing the data and testing probable hypotheses, and (5) determining the
final theory and where the fire started.
4 The family room and recreation room downstairs were essentially one room divided by a beam,
but no wall separated the rooms.
5 “Flashover” is a process that occurs when a fire is burning within a room and the layer of heat
that travels upward has nowhere to go and comes down to preheat the rest of the room and auto-
ignite all fuels and contents.
No. 48525-7-II
6
3. Kenneth Rice
Kenneth Rice, a senior fire investigator consultant, was asked to perform a technical
review6 of Lynam’s origin and cause determination, which is allowed under NFPA 921.7 Rice was
also retained to determine origin of the fire. He reviewed the reports generated by the fire
marshal’s office, including Lynam’s report and the supplemental reports of his deputies, Dale
Mann’s report, the fire department report, the crime lab report, the coroner’s report, and
photographs. Rice also spoke with Lynam after conducting his technical review. From the
photographs of the downstairs, Rice could tell that the fire did not start in the area by the sliding
glass door, nor in the area by the fireplace and right of the fireplace.
After reading Lynam’s report and talking to him, Rice still had some concerns about
whether an ember could have escaped the fireplace upstairs and traveled through the vent to start
a fire downstairs. Rice and Lynam performed a test together to address Rice’s concern. The two
recreated the hearth and vent assembly, burned two presto logs in the hearth, shoveled a large
amount of embers out, and dropped them directly through the vent, onto a basket of newspaper
and tissue paper. Out of the handful of embers that came down through the vent, only two burned
small holes in the newspaper but did not start a fire. Because the embers did not carry enough
energy by the time they reached the paper, a fire was unable to start. Based on the test, Rice
testified that “it didn’t appear probable that an ember could have escaped the fireplace that was in
6 A “technical review” involves a review of “all the data that [are in] any written reports that are
generated, photographs that were taken, [and] evidence that was collected.” 10 Verbatim Report
of Proceedings (VRP) at 1894.
7 Rice testified that NFPA 921 is the “most commonly used guide in the community.” 13 VRP at
2431.
No. 48525-7-II
7
the upstairs of the home” and start a fire downstairs. 13 Verbatim Report of Proceedings (VRP)
at 2379.
Rice and Lynam also conducted a smoke test to see when someone in the upstairs living
room would be able to see smoke if the fire was right under the vent. Based on the test, Rice
concluded that the fire “on a more probable than not basis did not occur directly under that vent or
in [that] area” because the witness statements said that there was not any smoke upstairs when they
were notified about the odor of smoke. 13 VRP at 2384.
Rice and Lynam also conducted a furniture ignition test. They lit a beanbag chair on fire
with a barbeque lighter next to a leather couch. Once on fire, the beanbag filling started to spill
out, pool, and ignite. The pooling spread under the couch and the couch then started to catch on
fire.
Rice concluded that the area of origin was the left side of the couch and that the fire was
incendiary because of the lack of an accidental ignition source in the area. He also concluded that
Lynam’s investigation was thorough and followed the scientific method.
4. David Lynam
David Lynam, the Kitsap County Fire Marshal, investigated the fire. Lynam confirmed
that NFPA 921 is the guide he uses for fire investigations. When investigating the origin and cause
of a fire, he utilizes the systemic approach in NFPA 921, the scientific method. In doing so, to test
a hypothesis, the proper method is to test the negative. NFPA 921 also requires the cause of the
fire to be probable, not just possible.
No. 48525-7-II
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In investigating the origin and cause of the fire using the scientific method, Lynam first
examined the upstairs and decided that the fire did not come from the upstairs. Lynam then
examined the downstairs.
Downstairs, Lynam saw heavy fire damage to the southwest wall of the family room, which
separated the family room and stairwell behind the couch. Lynam later established that the couch
area was the area of origin.8 Lynam then layered9 around the couch area. After eliminating a
number of hypotheses, Lynam determined that the northeast corner of the couch was the point of
origin for the fire.
After establishing the point of origin, Lynam began examining for possible causes, which
involved gathering information of possible ignition sources and then analyzing them to prove or
disprove different hypotheses. This process continued until a hypotheses for the cause of the fire
was reached that could not be denied.
One hypothesis was that the outlets started the fire. Lynam had two of the outlets examined
by a forensic electrical engineer who found nothing wrong with them, so Lynam ruled them out as
the cause of the fire. Lynam then tested a pedestal fan, which was determined to be not plugged
in, and ruled the fan out as the cause of the fire. Lynam also tested the baseboard heaters as a
cause, but the heaters were off and the breakers for them were also off. Lynam also ruled out the
8 The “area of origin” is the general area where the fire initiated and is less specific than the “point
of origin.” 8 VRP at 1504-05.
9 “Layering” is the process of “digging through the debris of a fire,” going from the least to the
worst damaged areas to determine a point of origin. 8 VRP at 1487. It is the first step in testing a
hypothesis and analyzing the scene.
No. 48525-7-II
9
television, fireplace insert, a coffee can, speakers, ceiling fan, bookshelf area, foosball table, and
smoking as causes of the fire.
Lynam then considered the hypothesis that an ember from the fireplace upstairs came
downstairs and caught the couch on fire. Lynam later conducted a test of that hypothesis and ruled
it out. Lynam testified that embers could come downstairs through the vent and ignite something,
but only if the embers were scraped off the hearth and put into the vent. And even then, the embers
that made it down the vent were incapable of igniting newspaper.
Lynam also hypothesized whether a beanbag chair lit on fire next to the couch could catch
the couch on fire. He tested the hypothesis by using a beanbag chair like the one that had been in
the house, placed it next to a leather couch, and lit the beanbag chair on fire. The beanbag chair
created a pool of fire, which went under the couch and caught the couch on fire. After the couch
was done burning, Lynam saw the same burn pattern on the couch that he saw in the O’Neil home,
and he smelled the same burning tire aroma that Kelly had reported.
Ultimately, Lynam concluded that the “fire was ignited by application of a handheld flame
to combustibles placed on or near the northeast corner of the couch,” and it was an incendiary fire.
15 VRP at 2851. Lynam admitted that he did not review the entire sheriff’s office case file before
generating his report, but that there was nothing in the sheriff’s case file that made him want to
change his conclusions after he did a complete review of the case file.
5. Dale Mann
Arndt called Dale Mann as a witness. Mann is a senior forensic chemist who has several
fire and arson investigation certifications and is experienced with reviewing materials from a
particular incident.
No. 48525-7-II
10
Mann testified that he was hired only to review Lynam’s origin and cause investigation.
Like the other witnesses, Mann also testified that NFPA 921 is the accepted standard for fire
investigations. NFPA 921 requires the use of the scientific method and requires scientific
evaluation of the evidence and processes. Mann stated that he did not perform an origin and cause
investigation or a technical review using the scientific method required by NFPA 921 or conduct
a scientific evaluation of the evidence or Lynam’s processes. Instead, his review combined aspects
of a technical review and a peer review.10 Mann admitted that most fire investigators do not
conduct the type of review that he did in this case. Instead, the most common method used by
people when they do the type of review he did “is outlined in [NFPA] 921.” 21 VRP at 4059.
The State moved to exclude Mann’s testimony on the basis that Mann did not follow the
methodology set forth in NFPA 921, which is the standard that should be employed and is the most
common method used. The State argued that Mann should not be allowed to opine about the
appropriateness of Lynam’s investigation when Mann’s review did not follow the proper
methodology, and because Mann did not follow the proper methodology, his opinions were not
trustworthy. The trial court allowed Arndt to voir dire Mann outside the presence of the jury prior
to ruling on the State’s motion to exclude.
During voir dire, Mann testified NFPA 921 removes the subjectivity of information used
by fire investigators and relies on data that has been validated. A witness statement is not data that
should be a considered in an investigation until it is validated, verified, or its accuracy is
10 “Peer reviews” are done on “white papers or articles that are going to be published in a
professional journal” and are done by people who have no association with the author of the
reviewed material. 13 VRP at 2472-73; 19 VRP at 3732.
No. 48525-7-II
11
authenticated. Typically, data is used to test a hypothesis, and it is contrary to the scientific method
to test a hypothesis using speculative or unverified information. He does not consider things that
are not data in rendering his opinions.
After a cursory review of Lynam’s investigation, Mann concluded that Lynam’s file did
not include “a tremendous amount of data” and that there was not enough data to ascertain origin
and/or cause of the fire. 19 VRP at 3618-19. Despite this conclusion, Mann did agree that Lynam
was correct that the origin of the fire was in the downstairs family room.
Although Mann could render his opinion based only on Lynam’s investigation file, for the
purposes of litigation, Mann went out to the fire scene to collect more data to “further examine the
hypothesis” Lynam presented as the origin and cause of the fire. 19 VRP at 3620. Lynam did not
validate the witness statement that a beanbag chair was on the foosball table, but Mann relied on
that unverified witness statement to challenge Lynam’s investigation into the origin and cause of
the fire. And in challenging Lynam’s investigation into the origin and cause of the fire, Mann did
not conduct tests to rule out other possible origins or causes of the fire, like the ceiling fan or the
pedestal fan, which is required under NFPA 921.
After voir dire, the State argued that Mann did more than a review of Lynam’s fire
investigation file. Instead, Mann actually conducted selective testing to reach an origin and cause
conclusion solely for the purposes of litigation without following the scientific method required
by NFPA 921.
The trial court agreed with the State that Mann “is taking nibbles at doing an origin and
cause” investigation, picking and choosing what aspects of the fire scene he wanted to investigate
No. 48525-7-II
12
in furtherance of litigation without following the scientific method required under NFPA 921. 19
VRP at 3650. The trial court stated:
It is not a problem that he goes to the scene, … but it is a problem when he starts to
test … because at that point in time he becomes an investigator. And an
investigator, if he is to be considered reliable … if he’s going to do an origin and
cause, that’s fine, let’s call it that. But he hasn’t done that. He said many times
over he didn’t do an origin and cause.
19 VRP at 3650-51. The trial court ruled that although Mann agreed with Lynam’s opinion about
the origin of the fire, Mann could not give an opinion on the ultimate origin and cause of the fire.
However, Mann was allowed to testify as to his opinions about the procedures Lynam used in
reaching his conclusions about the origin and cause of the fire. Thus, Mann could not testify as to
his own opinion of the origin and cause of the fire and he could not testify as to any testing he
conducted to reach such an opinion.
a. Melted bucket
On direct examination, Arndt sought to introduce testimony from Mann that he found the
remnants of a melted plastic bucket near where Lynam believed was the point of origin for the fire.
Mann investigated that area of the floor to gather data to test Lynam’s hypothesis. The bucket was
adhered to the floor and Mann detached it from the floor with a shovel. Mann was prepared to
testify that he lifted the bucket and found a protected area underneath, which meant that the fire
could not have started there. Arndt sought to introduce this testimony to disprove Lynam’s
conclusion that the origin of the fire was near the couch and that the cause was a beanbag that had
been set on fire.
The trial court excluded Mann’s testimony about lifting the bucket and his findings
following that lifting, reasoning that lifting the bucket constituted testing. However, the trial court
No. 48525-7-II
13
did allow Mann to testify that he observed the remnants of a melted plastic bucket by the east end
of the couch and that the remnants protected the floor; that such buckets were made of polyethylene
and that polystyrene is the material in beanbag chairs; that polystyrene survives fire better than
polyethylene; and that if the bucket survived, he would have expected the polystyrene pool of
liquid from the beanbag chair to survive as well.
b. Plastic container
Mann testified that he found remnants of a plastic container by the hearth downstairs and
other debris. The plastic was stuck to the floor and did not move if you nudged it. Arndt then
asked Mann about protected areas and Mann said,
I have seen tens of thousands of protected areas in my career. As soon as you have
a piece of plastic that’s been melted or stuck to a surface, the surface under that
material, if the bottom side of that plastic is in pristine condition, that says that the
surface it was attached to never went above the melting point of the material that is
adhered to it.
20 VRP at 3960. No further questions were asked regarding the plastic container.
c. Demonstrative evidence
Arndt sought to question Mann about a demonstration that he performed in his lab and
pictures from that demonstration. Arndt insisted that it was not a test but a demonstrative exhibit
that showed the principle of open flame combustion. The trial court initially stated that it did not
see it as relevant, but allowed Arndt to put on an offer of proof.
The first part of Mann’s demonstration involved a carpet with a pool of ignitable liquid
that was lit on fire, leaving a protected area. The second part of Mann’s demonstration involved a
bag of plastic packing peanuts that was lit on fire. When questioned by the State, Mann admitted,
No. 48525-7-II
14
[W]hen push comes to shove, my conclusion of the interpretation of spalling[11] by
Fire Marshal Lynam and the fact that it was caused by a [beanbag] chair placed
there contradicts the scientific principles involved in combustion of a plastic like
that.
20 VRP at 3998. Mann went on to state that the demonstration “educates the jury so that they can
understand whether or not interpretation presented for certain symptoms are reasonable or not.”
20 VRP at 4000. Arndt stated that the demonstrative evidence would be used to show “that data
was inconsistent with what you would expect to see there, which would be . . . a burn pattern as
opposed to spalling.” 20 VRP at 4002.
The trial court excluded evidence of Mann’s demonstration. The trial court reasoned that
the proffered evidence constituted testing and did not “replicate the situation and the circumstance
that we have in this investigation.” 20 VRP at 4004. Rather, the evidence compared Mann’s
conclusions and what he believed spalling or the burn marks would look like to what Lynam
testified to, which went beyond the scope of what Mann was allowed to testify about based on the
court’s prior ruling.
d. Review of reports
The State moved to exclude Mann’s testimony about materials not produced by the fire
marshal, such as police reports and coroner’s reports. The State argued that such reports were not
included in Lynam’s file and that Mann’s opinions based on such reports were not “based on what
all of [the] fire science folks do.” 19 VRP at 3745.
11 “Spalling” is the flaking of concrete that occurs when the moisture or the hydrated water in the
concrete is forced to evaporate quickly. Such a process may create a dog leg pattern.
No. 48525-7-II
15
The trial court ruled that Mann would not be able to give an opinion that was based on
what a police report said, nor would he be able to reference the police reports or coroner’s reports.
The trial court reasoned that Mann had not shown that experts in the field of evaluating fire
investigations reasonably relied on police reports. In an offer of proof, Mann then testified that
reports and interviews conducted by law enforcement would be commonly considered in his field.
But the trial court stood by its ruling.
e. Polystyrene test results
In an offer of proof, Mann testified that one of the tests he performed was based on a
witness’s statement that there was a beanbag in the area by the foosball table. He stated that this
test would show the presence of polystyrene, which would be evidence of the beanbag chairs.
Mann’s testing found polystyrene by the foosball table, but not by the couch. Mann’s results from
the polystyrene tests were offered to disprove Lynam’s hypothesis on origin and cause—that there
were beanbag chairs by the foosball table and that one of them was moved near the couch.
The trial court excluded Mann’s testimony about the results of his polystyrene testing
because
[if the court] were to allow [Mann] to testify to the polystyrene testing, that
effectively allows this witness to go through a fire scene and pick out areas that he
believes are important for purposes of this litigation to advance or diminish certain
aspects of the scene.
If he were to do an origin and cause, he would need to follow the scientific
method and eliminate various hypotheses.
Instead by focusing on one area, which seems to be this foosball area, he’s
taking one hypothesis and testing it. And not eliminating, under the scientific
method, the entire scene. And that was especially evident when asked about the
fan. Because he said himself, well, I knew that the investigation was inadequate
because the Fire Marshal didn’t test the fan.
No. 48525-7-II
16
Well, that was apparent. And he said he didn’t need to do anything more
than that. He didn’t pick up the fan to see if it worked.
If his belief that that was enough for him to make the analysis that the fire
marshal didn’t do the work he needed to do, that same analysis could have been
done with the foosball area.
It would have been, well, the Fire Marshal didn’t evaluate the foosball area,
period. Instead he went a step further. And it is this court’s review, in furtherance
of litigation to test that area for polystyrene, and that’s where he exceeds his limits.
19 VRP at 3651-52.
f. Flashover
Mann testified that “the lowest area of burn, particularly in the case of flashover, may not
be the origin of the fire.” 20 VRP at 3814. The trial court excluded Mann’s opinion as to whether
the room in which the fire originated flashed over, but allowed him to testify to the indicators of
flashover that he found. Mann testified that
[a]ll this kind—these patterns here are all concrete that chipped up. It means it got
very hot. It means we had—and the carpet that overlaid that area was pretty burned
up. It was consumed in the fire. It said we had a tremendous amount of energy or
a broad area that was radiating down to the floor. We know that doesn’t burn as
well as newspaper, so we know we had more than 20 kilowatts per square meter of
energy, and that is a classic definition of flashover.
20 VRP at 3827-28. Mann also testified that
I believe that that fire scene had practically every post-fire indicator for flashover.
And it had many indicators in the sequence, if you look at the timeline of flashover.
So, yes, it had many—there’s nothing at all inconsistent with anything about
that fire to indicate that it did not go to flashover.
20 VRP at 3894.
No. 48525-7-II
17
g. Smoke visibility
Mann also testified as to the visibility of smoke in the living room at the time of the fire.
He stated that he did not see that the fire marshal had considered whether the lights were on or off
in the room, whether there was a window covering, or whether there might be light coming in from
the window. He also testified that he looked at how apparent smoke would be upstairs and that
“[i]t seem[ed] obvious to [him] that there is smoke upstairs.” 20 VRP at 3897.
Mann evaluated the hypothesis that Thomas should have noticed smoke in the living room
when he walked by the vents by the fireplace. Mann tested the hypothesis by gathering data from
online resources about the distance of nearby streetlights, including aerial images of the O’Neil
house. In the end, Mann said that he did not have an answer to the hypothesis. The State moved
to strike the testimony, but the trial court only issued a warning and did not grant the State’s
motion.
E. VERDICT AND SENTENCING
The jury found Arndt guilty as charged. The trial court sentenced Arndt to life in prison
without the possibility of parole for her aggravated first degree murder conviction with aggravating
circumstances and special allegations of first degree arson, domestic violence, and a particularly
vulnerable victim. The trial court did not impose a sentence for her first degree felony murder
conviction predicated on first degree arson, but the conviction for first degree felony murder
remained in the judgment and sentence. The trial court ordered the sentences for her remaining
convictions for first degree arson and second degree assault to run concurrent to the aggravated
first degree murder conviction.
No. 48525-7-II
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Arndt appeals her convictions.
ANALYSIS
A. STANDARD OF REVIEW
Arndt argues that we should apply a de novo standard of review to the trial court’s
exclusion of Mann’s and Hanson’s testimony because the trial court’s ruling implicated her
constitutional right to present a defense. However, the State argues that an abuse of discretion
standard should be applied. We apply the abuse of discretion standard.
The United States Constitution and the Washington State Constitution guarantee
defendants the right to present a defense. U.S. CONST. amend. VI, XIV; WASH. CONST. art. I, §
22; State v. Wittenbarger, 124 Wn.2d 467, 474, 880 P.2d 517 (1994); State v. Yokel, 196 Wn. App.
424, 433, 383 P.3d 619 (2016). Accordingly, a defendant has a “right to present a defense
‘consisting of relevant evidence that is not otherwise inadmissible.’” State v. Mee Hui Kim, 134
Wn. App. 27, 41, 139 P.3d 354 (2006) (quoting State v Rehak, 67 Wn. App 157, 162, 834 P.2d
651 (1992)), review denied, 159 Wn.2d 1022 (2007). However, this right does not extend to
irrelevant or inadmissible evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010);
State v. Aguirre, 168 Wn.2d 350, 363, 229 P.3d 669 (2010).12
12 The dissent would hold that the trial court erroneously excluded “crucial, highly probative
testimony from Dale Mann.” Dissent at 38. However, Mann’s excluded testimony failed to satisfy
both Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and ER 702, as discussed more fully
below, and therefore, Mann’s excluded testimony was not admissible. Even if “crucial” and
“highly probative,” expert testimony must meet the Frye test and ER 702 to be admissible. Lakey